Last Updated: February 17, 2021

This Terms and Conditions of Use Agreement (the "Agreement") is a binding agreement between DVMetrics & Services LLC (“DVMS” or “we”) and the party which accesses or uses the Services and/or has otherwise entered into any agreement with DVMS related to the access or use of the Services (“User” or “you”). This Agreement governs your access to and use of the applicable Services, as defined herein, to which you subscribe or sublicense from DVMS or otherwise access or use. The Addenda attached hereto contain additional terms for specific Services.

BY CLICKING THE "SIGN UP”, “SIGN IN” OR “SUBMIT” BUTTON, OR OTHERWISE AGREEING TO BE BOUND BY THIS AGREEMENT AND DVMS’ PRIVACY POLICY, WHICH CAN BE FOUND AT https://dvmetrics.com/privacy AND IS INCORPORATED HEREIN BY REFERENCE (THE “PRIVACY POLICY”), IN ANY MANNER (INCLUDING, WITHOUT LIMITATION, A STATEMENT OF WORK OR INVOICE) OR ACCESSING, USING OR RECEIVING ANY PORTION OF THE SERVICES, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THE PRIVACY POLICY; (B) REPRESENT THAT YOU ARE THE DULY AUTHORIZED REPRESENTATIVE OF THE USER (OR YOU ARE THE USER); AND (C) ACCEPT THIS AGREEMENT AND THE PRIVACY POLICY ON BEHALF OF THE USER (OR YOURSELF) AND AGREE THAT THE USER (OR YOURSELF) IS LEGALLY BOUND BY THEIR TERMS.

We reserve the right to change our terms, including the terms of this Agreement, the Privacy Policy and Services by posting the changes to our website, portal or Services or otherwise providing notice to you. IF YOU DO NOT AGREE TO ANY AMENDMENT TO THIS AGREEMENT, THE PRIVACY POLICY OR THE SERVICES, YOUR SOLE REMEDY IS THAT YOU MAY TERMINATE THIS AGREEMENT OR THE SERVICES BY PROVIDING WRITTEN NOTICE TO DVMS. IF YOU DO NOT TERMINATE THIS AGREEMENT AND CONTINUE TO ACCESS OR USE THE SERVICES, THEN YOU WILL BE DEEMED TO HAVE ACCEPTED THE AMENDMENT(S).

1. DEFINITIONS AND LICENSE:

1.1 License:

Subject to the terms and conditions of this Agreement and any applicable Order Forms or Documentation (each as defined below), DVMS hereby grants to User and its Authorized Users a non-exclusive, non-transferable, revocable, limited sublicense (without the right to sublease or sublicense) to Access and Use the Services, during the Subscription Term for each applicable Service solely for User’s own internal business use. Any rights not expressly granted in this Agreement are expressly reserved by DVMS or its licensors. User is responsible for all activity occurring under User’s Authorized User accounts. User shall notify DVMS immediately of any unauthorized use of any password or account or any other known or suspected breach of security or this Agreement by User or its Authorized Users.

1.2 Definitions:

Access” means access to the Services in the manner set forth in the applicable Order Form. If access is not defined in a particular Order Form, Access means access to the Services in an operating environment hosted by DVMS (or its agents or subscribers; provided that any agent or subscriber access is limited to the access terms between DVMS and such agent or subscriber and this Agreement).

Addenda” means any addenda attached to this Agreement.

Authorized Users” means: (i) User’s employees who are subject to binding confidentiality obligations applicable to the Services and DVMS’ Confidential Information that are at least as restrictive as those set forth herein; and (ii), solely to the extent permitted by DVMS’ Order Form or Documentation, contractors or customers of User authorized by User to Access the Services who, prior to obtaining Access to the Services, have executed a non-disclosure agreement that protects the Services and DVMS’ Confidential Information to the same extent as this Agreement. In each case of both (i) and (ii), to the extent required by DVMS, each Authorized User must be registered in DVMS’ database with a unique User ID and a unique password. “User ID” means a unique user identification credential used in combination with a unique password to Access the Services. Unless otherwise expressly set forth herein, all references to Users herein shall include and apply to Authorized Users.

Documentation” means the then-current DVMS-provided documentation or information relating to the features, functions, and use of the Services, in printed or electronic form (including on any DVMS website or portal), as they may be modified from time to time by DVMS.

Fee-Based Services” means and includes those services which (i) DVMS designates as fee-based services on your Order Form, as such fee-based services may be modified from time to time by DVMS and/or (ii) any other services to which DVMS, in its sole discretion, permits your Access or Use in exchange for payment of a fee to DVMS or its agent from time to time.

Free Services” means and includes those services which (i) DVMS designates as no fee services on your Order Form, as such no fee-based services may be modified from time to time by DVMS and/or (ii) any other services to which DVMS, in its sole discretion, permits your Access or Use without an Order Form and without payment of any fee to DVMS or its agent from time to time. DVMS reserves the right to remove any services from the Free Services, in which case, at User’s option, DVMS may allow User to undertake a fee-based subscription for Access to such services at DVMS’ then-current fees for such services.

Intellectual Property Rights” shall mean all worldwide intellectual property or proprietary rights, including, without limitation, patents, licenses, trademarks, service marks, trade names, inventions, trade secrets, and copyrights in any way related to or connected with the Services, including without limitation any intellectual property or proprietary rights in any way related to or connected with the origin, design, manufacture, programming, operation and/or service of the applicable documentation, services, software product, process, analysis or data.

Order Form” means each written or electronic order form, request for access/User ID, statement of work or invoice executed or otherwise agreed to by User (including Access or Use of the Services as acceptance by User) for sublicense to the Services, which may contain, without limitation, a list of the Services to which User subscribes, any limitations on the Services provided or the use thereof, the Subscription Term thereof and any applicable subscription fees and payment terms.

Subscription Term” means the term during which DVMS provides or allows you Use or Access to the Services.

“Services” means the Fee-Based Services and Free Services offered by DVMS from time to time and to which the respective User is provided Use or Access in accordance with this Agreement.

Use” means use of the Services as permitted specifically pursuant to this Agreement, including without limitation any restrictions in the Addenda, Documentation or an Order Form.

User Data” means information provided, entered, uploaded, or made available for access or use by or with the Services by User or its Authorized Users.


2. USER OBLIGATIONS, UNDERSTANDINGS AND AGREEMENTS:

2.1 Permitted Use and Restrictions on Use – For Internal Business Use Only.

User agrees that it will only Access and Use the Services in accordance with the terms of this Agreement and the Documentation, and only for its own internal business purposes. User agrees that it will not: (a) modify, disassemble, reverse engineer, decompile or make any attempt in any fashion to obtain the source code for or violate the security of the Services (or attempt to do any of the foregoing); (b) attempt to Access or Use portions of the Services, or its related systems, networks or databases, for which User has not acquired a sublicense or right to Access or Use the Services, or (c) publish, display, distribute, copy or transfer the Services or any component thereof (including, without limitation, any publishing or display on User’s website). User acknowledges and agrees, and shall ensure that, only the Authorized Users shall be entitled to Access and/or Use the Services and that User will not authorize or allow any person other than an Authorized User to Access and/or Use the Services. User may not publish, distribute, display, copy, transfer or sell the Services to any third party or make any other commercial use of the Services other than for its internal business purposes. User shall not use the Services or any component of the Services for rental or in the operation of a service bureau, including without limitation, providing third party hosting, or third party application integration or application provider services. User shall not delete or remove any copyright notices, watermarks, identifying names, numbers or marks or other security mechanisms or devices contained in or on the Services or any component of the Services (including any reports) and shall take other reasonably necessary steps to protect the Services from disclosure, Access or Use other than as permitted by this Agreement. Any use of the Services by User shall include proper source attribution to DVMS; provided that solely to the extent expressly permitted in an Order Form User shall be allowed to private label the Services.

2.2 User’s Obligation Related to Required Specifications and Backup.

User, at its sole expense, shall be responsible for procuring and maintaining all hardware, equipment, software and internet connections which will be used by User and its Authorized Users to connect to and appropriately Access and Use the Services. User acknowledges and agrees that neither DVMS nor its licensors exercise any control over, and they accept no responsibility for, the Internet connection services of User or its Authorized Users as supplied by third parties, such as Internet service providers. User shall provide viable back-up for its data, Internet connection services, and Internet service providers.


3. PAYMENT:

The Free Services are provided free of charge to applicable Users. The Fee-Based Services are offered on a fee-for-service basis. Should User elect to order, Access or Use any Fee-Based Services, User shall pay DVMS all fees set forth in the Order Form (or as otherwise determined or charged by DVMS) as a prerequisite for DVMS to provide User such Fee-Based Services. Except as expressly specified in this Agreement, DVMS does not grant any refunds for Fee-Based Services, including as a result of early termination of the Services by User. User is responsible for all applicable taxes in connection with its receipt of any Services pursuant to this Agreement and any payment of subscription fees for such Services other than taxes assessed against DVMS’ net income. All payments are transacted through third-party payment processors (“Payment Processors”). DVMS is not collecting or storing any payment information. All such information is collected and used by the Payment Processors in order to facilitate the completion of the transaction. User understands and acknowledges that when User completes a transaction, User is doing so via the applicable Payment Processor’s service and agrees that User and its Authorized Users will be bound by and will comply with the applicable terms of use, privacy policy, or other document or agreement governing such service. Moreover, User agrees that DVMS shall not have any liability with respect to such third party processing services or payments made in connection with the Services.


4. PROPRIETARY RIGHTS:

All Intellectual Property Rights in the Services (and all components thereof including without limitation any content, data, databases, platforms or publications) and in any ideas, know-how, feedback, recommendations, customer or User improvements or other information and programs developed by DVMS in the course of providing any Services, including any enhancements or modifications made to the Services, are and shall at all times remain the property of DVMS and its licensors, as applicable. By this Agreement, DVMS only grants to you the right to Access and Use the Services as permitted by this Agreement during the Subscription Term, and you will delete and otherwise cease all use of any and all of our Services, data or databases at the conclusion of the Subscription Term. Each party’s name, logo, and associated product names are trademarks of the owning party, or its licensors, and no right or license is granted to use them except as expressly allowed in writing by the owning party; provided that to the extent that an Order Form permits User to private label the Services, User hereby grants to DVMS a non-exclusive, transferable, sublicenseable right and license to use User’s name, logo, and associated product names are trademarks as needed to facilitate such private labeling.


5. CONFIDENTIALITY:

Confidential information” means all non-public business, financial, marketing, and technical information of DVMS or its licensors, that is reasonably identified as confidential at the time of disclosure, or that a reasonable person would consider as confidential. User shall not disclose or use DVMS’ Confidential Information except as permitted herein or without the prior written consent of DVMS. Confidential Information is not information that (a) is or becomes public other than through a breach hereunder; (b) is disclosed without obligation of confidentiality by a person or entity not party to this Agreement; or (c) is required to be disclosed by any judicial or legal process. The terms of this Section 5 shall survive termination or expiration of the Agreement.


6. DATA:

6.1

User hereby grants to DVMS and its affiliates and licensors a worldwide, royalty-free, fully-paid-up, non-exclusive, irrevocable, perpetual, and transferable license to access and use User Data (including without limitation the right to create derivative works thereof) to (i) provide the Services to User, and (ii) analyze and/or aggregate User Data with other data in connection with the Services provided to User and to other customers or licensees or otherwise use User Data for or in connection with other products or services that may be offered by DVMS or its affiliates from time to time; provided, however, that, except with respect to PIMS-Enabled Services (defined below), no data derived from User Data shall be provided to third parties (other than Authorized Users of such User and third parties that assist DVMS in the provision of the Services hereunder or DVMS’ affiliates) in such a fashion that would link User’s or User’s underlying customers’ or pets’ identity to any specific data. Notwithstanding the license to the User Data granted herein, User acknowledges and agrees that DVMS’ or its affiliates’ use of User Data (and DVMS’ or its affiliates’ modifications to such User Data or creation of derivatives thereof) shall in no way convey, transfer or expand upon the limited sublicense to User to Access and Use the Services in accordance with this Agreement or any other agreement User may enter into with DVMS. The license to use User Data shall survive the term and termination of this Agreement. USER REPRESENTS, WARRANTS AND COVENANTS THAT IT HAS ABIDED BY ALL APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION ALL APPLICABLE PRIVACY LAWS, IN THE COLLECTION AND DISTRIBUTION OF THE USER DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USER REPRESENTS AND WARRANTS THAT IT HAS OBTAINED ANY NECESSARY CONSENT OR AUTHORIZATION FROM ITS EMPLOYEES, CUSTOMERS OR ANY OTHER THIRD PARTIES TO COMPLY WITH ANY APPLICABLE LAWS (INCLUDING WITHOUT LIMITATION PRIVACY LAWS) OR CONTRACTUAL AGREEMENTS WITH SUCH EMPLOYEES, CUSTOMERS OR THIRD PARTIES IN ORDER TO PERMIT DVMS AND ITS AFFILIATES, SUBCONTRACTORS AND LICENSORS TO ACCESS AND USE THE USER DATA AS SET FORTH IN THIS AGREEMENT AND RELATED TO THE PROVISION OF THE SERVICES HEREIN AND EXERCISE OF DVMS’ AND ITS AFFILIATES’, SUBCONTRACTORS’ AND LICENSORS’ RIGHTS IN THIS AGREEMENT. User acknowledges and agrees that if it disallows DVMS or its affiliates, subcontractors and licensors access to and use of User Data, such action may prevent DVMS from providing all or a portion of the Services to User.

6.2

DVMS and User each agree to comply with all applicable federal, state and local laws or regulations concerning the disclosure and/or use of personally identifying individual information. User Data shall be the sole property of User; however, any aggregated or de-identified data including User Data created by DVMS will be the sole property of DVMS and its licensors. In addition, User acknowledges and agrees that (a) DVMS or its affiliates may from time to time independently obtain from third parties the same data that is included in the User Data, and (b) such independently obtained data is not subject to this Agreement and may be used by DVMS or its affiliates not subject to any restrictions set forth herein. User represents and warrants to DVMS that User possesses all necessary rights in User Data sufficient to permit User to provide such User Data to DVMS for the purposes of and rights granted to DVMS pursuant to this Agreement and the Services.


7. WARRANTIES:

7.1 User Warranties

User warrants that it shall not post, use or provide, shall not allow to be posted, used or provided, and shall be solely responsible for the posting, using or providing of (a) any materials or data (including User Data) that infringe on or violate any intellectual property rights or privacy or other legal or proprietary rights of another; and (b) any libelous or defamatory material. User hereby warrants that it has the right to grant to DVMS and its affiliates, subcontractors and licensors the license to access, receive and use the User Data in the manner and for the purposes set forth in this Agreement.

7.2 Disclaimer of Warranties

DVMS AND ITS SUBCONTRACTORS AND LICENSORS DO NOT WARRANT UNINTERRUPTED, ERROR-FREE, OR TIMELY DELIVERY OF SERVICES OR GUARANTEE THE SECURITY OF THE SERVICES. DVMS AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND THE SERVICES AND ALL COMPONENTS THEREOF ARE PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DVMS SPECIFICALLY DISCLAIMS FOR ITSELF AND ITS LICENSORS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY REPRESENTATIONS, WARRANTIES, OR ENDORSEMENTS REGARDING TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, USE OF, THE RESULT OF, OR PERFORMANCE, APPROPRIATENESS, ACCURACY, OMISSIONS, RELIABILITY, AVAILABILITY, COMPLETENESS, TIMELINESS, CURRENTNESS, OR CORRECTNESS OF THE SERVICES OR ANY DATA OR INFORMATION THEREIN. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.


8. LIMITATION OF LIABILITY; NO VETERINARY OR MEDICAL ADVICE; RISK OF USE:

IN NO EVENT SHALL THE DVMS INDEMNITEES’ (DEFINED BELOW) LIABILITY FOR ALL CLAIMS, SUITS AND DISPUTES ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY OF THE SERVICES EXCEED (IN THE AGGREGATE) THE GREATER OF: (I) THE AMOUNT OF FEES ACTUALLY PAID BY USER TO DVMS HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF SUCH CLAIM, SUIT, OR DISPUTE OR (II) $100.00 U.S. DOLLARS. THE DVMS INDEMNITEES SHALL NOT BE LIABLE FOR ANY LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES HOWEVER CAUSED AND THIS LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. THIS LIMITATION SHALL APPLY EVEN IF THE DVMS INDEMNITEES OR THEIR REPRESENTATIVES HAVE BEEN ADVISED OF OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION. NONE OF THE DVMS INDEMNITEES IS ENGAGED IN THE PRACTICE OF VETERINARY MEDICINE. USER HEREBY ACKNOWLEDGES THAT THE INFORMATION AVAILABLE VIA THE SERVICES IS NO SUBSTITUTE FOR PROFESSIONAL MEDICAL OR VETERINARY ADVICE NOR IS IT INTENDED TO BE RELIED UPON BY ANY PERSON OR ENTITY FOR PURPOSES OF MEDICAL OR VETERINARY DIAGNOSIS OR TREATMENT. DVMS AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL LIABILITY WITH REGARD TO CLAIMS BASED ON OR RELATING TO MEDICAL OR VETERINARY DIAGNOSIS OR TREATMENT. IF USER REQUIRES VETERINARY OR MEDICAL ADVICE, USER SHOULD SEEK THE SERVICES OF A COMPETENT VETERINARIAN OR MEDICAL PROFESSIONAL. THE ENTIRE RISK AS TO THE USE OF THE SERVICES AND DATA AND INFORMATION PRESENTED THEREIN IS ASSUMED BY THE USER. ACCORDINGLY, IN NO EVENT WILL THE DVMS INDEMNITEES BE LIABLE FOR ANY LOSSES RESULTING FROM THE USE OR RELIANCE ON THE SERVICES OR ANY DATA OR INFORMATION CONTAINED THEREIN, WHETHER WITH RESPECT TO DRUG IDENTIFICATION, USES, PROCEDURES, DOSAGES, OR EQUIVALENCIES, OR BY REASON OF ANY MISSTATEMENT OR ERROR, NEGLIGENT OR OTHERWISE.


9. USER INDEMNIFICATION:

User shall indemnify, defend and hold harmless DVMS and its licensors, affiliates, parents and subsidiaries and their respective employees, owners, officers, contractors, and agents (collectively the “DVMS Indemnitees”) from and against any and all claims, demands, liabilities, judgments, awards, settlements, damages and costs including without limitation reasonable legal fees and expenses (collectively “Losses”) incurred by the DVMS Indemnitees to the extent that such Losses arise out of or in connection with (i) a breach of any representation, warranty, obligation or covenant of User hereunder, (ii) the acts or omissions of User or Authorized Users or any of their employees or agents related to this Agreement or (iii) User’s or Authorized User’s Access, Use, disclosure or reproduction of the Services or Documentation.


10. REVISIONS AND UPDATES TO THE SERVICES:

10.1

From time to time, DVMS, in its sole discretion, may provide updates or revisions to the Services to User. User acknowledges and agrees that the covenants, representations and warranties of DVMS set forth in this Agreement shall only apply if User is using the most recent updated and/or revised version of the Services that has been made available to User. Further, DVMS has no obligation to support the Services if User is not using the most recent updated and/or revised version of the Services.

10.2

User acknowledges that, from time to time, the Services may be disrupted, inaccessible or inoperable for various reasons, including, without limitation, equipment malfunctions, upgrades or modifications, or causes beyond the control of DVMS, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion, changes to User’s computer system or practice information management system or other failures or events beyond DVMS’ control.


11. TERMINATION:

11.1 Termination by Either Party For Breach.

This Agreement (and the underlying Services) may be terminated immediately by either party upon written notice to the other party if the other party breaches a material term or condition of this Agreement and such breach remains uncorrected for thirty (30) days. DVMS may suspend User and its Authorized Users’ Use of the Services, in whole or in part, during the cure period for any such breach until such breach is cured to DVMS’ satisfaction.

11.2 Termination by DVMS For Certain Circumstances.

In the event of: (a) a change in control of User, whether by sale of assets, stock, or otherwise, (b) an attempt by User to assign this Agreement or any of its rights or obligations to a third party without DVMS’ prior written consent or (c) DVMS’ license or right to provide all or part of the Services terminates for any reason, DVMS may terminate this Agreement (and any underlying Services, in whole or in part) immediately upon written notice to User. In such event, User shall be entitled to a refund of any unearned subscription fees paid by User for Services which have not been provided to User as of the date of termination of such Services.

11.3 Termination By Either Party in General.

This Agreement (and the underlying Services) may be terminated immediately by either party upon written notice if: (a) the other party becomes insolvent, makes a general assignment for the benefit of its creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceeding under bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise; or (b) the business of the other party terminates for any reason.

11.4 Effect of Termination

Upon the effective date of termination of this Agreement (or the applicable Services), or expiration of the Subscription Term hereunder for any applicable Services, all rights granted to User (and the Authorized Users) under this Agreement for the terminated Services will immediately terminate and revert to DVMS and its licensors, as applicable, and User shall cease using the Services and any component thereof. In addition to any other amounts for which User may be liable to DVMS hereunder, upon any expiration or termination of this Agreement, User shall remain liable for and pay when due all subscription fees due to DVMS. For clarification, User acknowledges and agrees that upon termination of any Services, DVMS shall not have any obligation to provide access to any data included within the Services prior to termination or expiration of the Services. The following obligations will survive termination of this Agreement for any reason: (a) User’s obligations to make payments of all amounts due; (b) all obligations of User and its Authorized Users as described in Section 2; (c) Sections 4, 5, 6, 7, 8, 9, 11.4, 12 and 13, and (d) all obligations and provisions in any Addenda.


12. FORCE MAJEURE:

If either party is unable to perform any of its obligations under this Agreement (excluding any of User ’s payment obligations hereunder which may not be suspended by a Force Majeure Event) or to enjoy any of its benefits because of a natural disaster, an action, event or circumstance that could not be reasonably anticipated by such party, or decree of governmental bodies and the same is not the fault of the affected party (hereinafter referred to as a “Force Majeure Event”), the party who has been so affected shall give notice to the other party and shall take reasonable steps to resume performance. Force Majeure Events shall also include, without limitation, fires, explosions, earthquakes, floods; strikes, work stoppages or other industrial disputes; accidents; riots or civil disturbances; acts of civil or military authorities; acts of terrorism; epidemics, pandemics, outbreaks or quarantines; denial of service attacks; equipment malfunctions, upgrades or modifications, or causes beyond the control of DVMS, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion, modifications to User’s computer system or practice information management system; and delays, acts or omissions by carriers, suppliers, licensors or other third parties or materials shortages. Upon receipt of such notice, all obligations under this Agreement, other than payment obligations, affected by such Force Majeure Event shall be immediately suspended.


13. GENERAL PROVISIONS:

(a) This Agreement and any applicable Addenda hereto, the Privacy Policy, and applicable Order Forms (which are incorporated herein by this reference) constitute the final agreement between the parties relating in any manner to the subject matter hereof. This Agreement supersedes all prior and contemporaneous negotiations, correspondence, understandings, and agreements between the parties relating to the subject matter hereof. For purposes of clarification, the parties agree that this Agreement does not in any way affect, alter, or modify any separate agreement between them or between User and DVMS’ parent company, Animalytix LLC, a Delaware limited liability company (“ALX”), related to the provision by DVMS or ALX of services other than the Services. Except as permitted herein for DVMS’ amendment, this Agreement may be amended only by the written agreement of the party against which enforcement is sought. (b) If any provision hereof is held invalid, illegal, or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. (c) User may not assign or transfer this Agreement without the prior written consent of DVMS. DVMS may assign this Agreement and/or delegate or subcontract any of its duties or obligations hereunder and/or sublicense its rights granted by this Agreement. (d) The laws of the State of Delaware shall govern this Agreement without regard to its provisions regarding conflict of laws. (e) DVMS is a reseller and sublicensor of the Services, which are performed by ALX. Accordingly, all references herein to DVMS, we, or our shall be deemed to include, and be for the benefit of, ALX. Except for the DVMS Indemnitees (including without limitation ALX), there are no intended third party beneficiaries of this Agreement. (f) The parties to this Agreement are independent contractors and no agency, partnership, joint venture, or employee relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. (g) In the event of any dispute between the parties arising out of this Agreement, the substantially prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney fees and costs.


Addendum 1

Additional Terms and Conditions For Specific Services

In addition to the terms and provisions of the Agreement, the below additional terms and provisions shall apply to the applicable Services noted below. To the extent of any conflict between this Addendum and the Agreement, the provision which is most favorable or protective of DVMS shall control.

Safety Data Sheet Library (SDSL) (formerly known as COMPAS)

User acknowledges, understands and agrees that the automated binder created for User pursuant to the SDSL Services will only include those products in the SDSL database which are applicable to User according to data provided to DVMS by its data participants or User. User is solely responsible to review such products and amend or update them for User and User’s business operations. Further, User acknowledges, understands and agrees that the SDSL database does not include all products which require a safety data sheet (SDS) under applicable laws and regulations. This service is for informational purposes only. If you believe that an SDS is or may be required for any product not in DVMS’ database, please reach out to your contact at the manufacturer and/or consult your regulatory counsel.


The Coupon Drawer

Client acknowledges, understands and agrees that the use of any coupon or offering provided pursuant to the Coupon Drawer Services are subject to any terms, conditions and restrictions of the applicable manufacturer. DVMS is solely providing a portal for the receipt and distribution of the coupons and makes no representations or warranties about the validity or use thereof. Any inquiries should be directed to the manufacturer.


PIMS-Enabled Services

1. Definitions,

a. “S3 Data Transfer Tool” means (i) DVMS’ proprietary owned software tool, as such tool may be updated by DVMS from time to time or (ii) other export method, such as API or a data export or transfer tool of one of DVMS’ agents, which allows DVMS to access, export and/or transfer User’s PIMS Data from User’s computer system and PIMS in order for DVMS to provide certain of the Services and otherwise exercise DVMS’ rights hereunder.

b. “PIMS-Enabled Services” means those Services which require access and use of User Data accessed, obtained, exported or transferred from User’s computer system and/or PIMS. Enabling any PIMS-Enabled Services requires User to provide DVMS access to User’s PIMS Data for export and transfer through the S3 Data Transfer Tool. In the event User orders any PIMS-Enabled Services, User shall provide access to DVMS (or its agent) for the placement and maintenance of the S3 Data Transfer Tool on or with respect to User’s computer system and PIMS in order to receive such PIMS-Enabled Services.

c. “PIMS Data” means User’s information regarding individual sales transactions at invoice level including customer name, pet name, pet age, pet breed, services provided, fees charged, any applicable codes associated with the previous data elements and other such information as may exist within User’s PIMS.

d. “PIMS” means User’s practice information management system software.

e. For clarification, all references to “Services” in the Agreement shall mean and include, without limitation, the PIMS-Enabled Services and the S3 Data Transfer Tool, when PIMS-Enabled Services are applicable

f. For clarification, with respect to PIMS-Enabled Services, “User Data” includes information provided via access, export or transfer with the S3 Data Transfer Tool, and specifically includes the PIMS Data.

2. PIMS-Enabled Services

a. If User subscribes to any PIMS-Enabled Services, User hereby agrees to provide DVMS required access to User’s computer system and PIMS, and access and a license to use the PIMS Data to allow DVMS to fulfill its obligations and exercise the rights granted hereunder, including, without limitation, DVMS’ (or its agent’s) installation of the S3 Data Transfer Tool and export or transfer of the PIMS Data from User’s computer system and PIMS to DVMS thereafter during the Subscription Term. User acknowledges and agrees that (i) the use restriction set forth in Section 6.1(ii) of the Agreement does not apply to PIMS-Enabled Services, and DVMS may provide data derived from User Data to third parties in such a fashion that would link User’s or User’s underlying customers’ or pets’ identity to any specific data in order to provide PIMS-Enabled Services, (ii) User’s failure to provide DVMS (or its agents) the ability to install and use the S3 Data Transfer Tool will prevent DVMS from being able to provide any affected Services, and DVMS has no liability related to the failure to provide such Services in that instance, and (iii) it may be necessary for User to enter into terms of use, a EULA, or other agreement with DVMS’ agent in order to receive the PIMS-Enabled Services, and DVMS has no liability related to the failure to provide such Services if User fails to do so for any reason. The S3 Data Transfer Tool installed by DVMS (or its agents) for the purposes of providing the Services will be used and accessed by DVMS (or its agents) only and will be removed by DVMS or its agent (or User at DVMS’ direction) upon expiration or termination of this Agreement or termination of the Services which require the use of the S3 Data Transfer Tool.

b. User acknowledges that DVMS supports some, but not all, PIMS. In certain instances, DVMS will support only certain versions of a particular PIMS. In the event that User uses a PIMS (or version thereof) not currently supported by DVMS, the PIMS-Enabled Services will be unavailable to User.

c. Delivery of PIMS-Enabled Services may be disrupted temporarily or permanently due to changes made to User’s PIMS or changes to User’s computer system. In such event, DVMS shall advise User in the event of such a disruption of service and, shall, at DVMS’ sole option and discretion, undertake reasonable efforts to re-establish a functioning interface with User’s PIMS and/or computer system or terminate User’s subscription for the affected PIMS-Enabled Services and provide User with a refund for any subscription fees paid by User for PIMS-Enabled Services not yet received as of the date of termination of such PIMS-Enabled Services. USER ACKNOWLEDGES AND AGREES THAT THE RETURN OF UNEARNED SUBSCRIPTION FEES, IF ANY ARE DUE, SET FORTH IN THE PRIOR SENTENCE WILL BE DVMS’ SOLE AND EXCLUSIVE LIABILITY, AND USER’S EXCLUSIVE REMEDY, WITH RESPECT TO ANY DISRUPTION IN THE PIMS-ENABLED SERVICES RESULTING FROM A CHANGE TO THE PIMS BY ANY PARTY OR TO USER’S COMPUTER SYSTEM.


Rewards Programs

User acknowledges that, except for the Services provided by DVMS herein, the applicable rewards program provider (or its participating vendors) shall be solely responsible for the administration of its rewards program and any incentives, savings or rebates offered by such provider (or its participating vendors), including the provision of payments, savings or credits to the rewards program participants and handling any particular disputes or questions related to the rewards program.